Foreign Trade Antitrust Improvements Act: a Three-Ring Circus — Three Circuits, Three Interpretations

Deborah J. Buswell 

This note explores differing judicial interpretations of the Foreign Trade Antitrust Improvements Act (FTAIA). While the FTAIA is over twenty years old, the expanding global marketplace has created a new paradigm under which the judiciary is called upon to interpret the applicability of United States antitrust legislation to foreign marketplaces and foreign litigants. Recent antitrust litigation has pushed the interpretation of the FTAIA to the forefront of the federal judiciary. The FTAIA was intended to clarify application of the Sherman Act and Clayton Act to foreign antitrust claims. Judicial interpretation of the FTAIA, though, varies greatly and a has developed between the Second and Fifth Circuits over what protection, if any, the FTAIA should provide to foreign plaintiffs wanting to litigate antitrust claims against foreign companies in United States courts. The recent price-fixing case of Empagran S.A. v. F. Hoffinan-LaRoche, Ltd.,forced the District of Columbia Circuit to examine the reasoning behind prior interpretations of the FTAIA and to adopt a compromise position that strikes a balance between the restrictive and expansive interpretations of the FTAIA propounded by the Fifth and Second Circuits. As the global marketplace expands, the applicability of United States antitrust legislation will continue to be a topic of controversy.